Shivamurthy S/O. Basappa Naik vs Shivalingayya S/O. Basayya ...
2021 Latest Caselaw 6849 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 20 T H DAY OF DECEMBER, 2021

                          BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


           R.S.A.NO.100087/2020 (DEC.& INJN.)

BETWEEN

SHIVAMURTHY S/O. BASA PPA NAIK ,
AGE: 82 YEARS , OCC: A GRICULTURE,
R/O: NEAR MARUT I TEMPLE,
MUTNAL, POST: N ANDAGAON-591 304,
TQ: GOKAK, DIST: BELA GAVI.
                                           ...A PPELLANT
(BY SRI.C S SHET TAR, ADV .)


AND

SHIVALINGAYYA
S/O. BASAYYA HIREMATH @ KULAGOD,
SINCE DECEASED BY HIS LR.S .,

SHANTAWW SHIVA LINGAYYA
HIREMATH @ K ULA GOD ,

SINCE DECEASED BY HER LR.S.,

1. S OMASHEKHARAYYA
   S/O SHIVALIN GAYYA HIREMATH
   @ K ULAGOD ,
   AGE: 44 YEARS, OCC: EX-S ERVI CE
   R/O: NEAR TA HASILDAR OFFICE,
   HUBBALLI - 580 009.

2. GURUPADAYYA
   S/O. SHIVALIN GAYYA HIREMATH
                              2




     @ KULAGOD,
     A GE: 44 YEA RS,
     OCC: A GRICULTURE,
     R/ O: N EAR BA SAVANNA TEMPLE,
     AYYAGOL STREET,
     NANDA GAON- 591 304,
     T Q: GOKAK ,
     DIST: BELA GA VI.

3.   MAHANTESHA YYA
     S/ O. SHIVA LI NGAYYA HIREMATH
     @ KULAGOD, AGE: 40 YEARS ,
     OCC: A GRICULTURE,
     R/ O: N EAR BA SAVANNA TEMPLE,
     AYYAGOL STREET,
     NANDA GAON- 591 304,
     T Q: GOKAK , D IST: BELA GAVI.

MAHADEV S/O. BA SAYYA HIREMATH,
@ KULA GOD
SINCE DECEASED BY HIS LR.S .,

4. KAS HAVVA W/ O. MAHADEV
   HIREMATH @ K ULAGOD,
   AGE: 44 YEARS,
   OCC: HOUSEHOLD AND COOLIE,
   R/O: NEAR BA SAVANNA TEMPLE,
   AYYAGOL STREET,
   NANDAGA ON- 591 304,
   TQ: GOKAK, DIST: BELA GAVI.

5. GANGAVVA
   W/O. CHANNA BASAYYA HIREMATH,
   AGE: 34 YEARS, OCC: AGRI CULTURE,
   R/O: NEAR BA SAVANNA TEMPLE,
   AYYAGOL STREET, NANDA GAON - 591 304,
   TQ: GOKAK, DIST: BELA GAVI.
   NOW R/AT SHI NDIKURBET, TQ:GOKAK

6. DANAVVA W/O. KEMPAYYA GANA CHARI,
   AGE: 34 YEARS, OCC: AGRI CULTURE,
   R/O: MATAPAT I GALLI, HEBBAL,
   TQ: HUKKERI , DIST: BELA GAVI.
                                   3




7. MALLAVVA W/ O. SAN GAYYA HIREMATH,
   AGE: 27 YEARS, OCC: AGRI CULTURE,
   R/O: GOSABAL-591 227,
   TQ: GOKAK, DIST: BELA GAVI.


SADASHIV S/O. BASAYYA HIREMATH @ KULAGOD,
REPORTED AS DEA D BEF ORE TRIA L COURT .

8. N EELAKANTAYYA
   S/O. BASAYYA HIREMATH @ K ULA GOD ,
   AGE: 54 YEARS, OCC: AGRI CULTURE,
   R/O: NEAR GHATAPRABHA RIVER ROAD ,
   NANDAGA ON-591 304,
   TQ: GOKAK, DIST: BELA GAVI.
                                                     ...RESPONDENTS

(BY SRI.SHRI HARS H A N EELOPANT ,
 ADVOCATE F OR R1 TO R8(NOC)
(SRI.M.C.HUKKERI , ADV OCATE FOR C/R1-R5 & R8)


      THIS RSA IS FILED U/SEC.100 R/ W O.XLII RULE 1 OF
CPC, PRAYING THIS COURT TO AD MIT THE APPEAL AND CALL
FOR THE RECORD S OF THE COURT S BELOW AND ALLOW THE
APEPAL S ETTING ASIDE THE J UDGMENT AND DECREE PASS ED
IN   R.A .NO.23/2016   DATED     11.12.2019     PASED   BY     I   ADDL.
SENIOR CIVIL JUDGE COURT AT GOKAK AND THE JUDGMENT
AND DECREE PAS SED BY LEARNED PRINCI PAL CIVI L JUDGE
AND    JMFC   COURT,    GOKAK         IN   O.S .NO.277/ 2001       DATED
10.02.2016    AND   PRAYS   TO    DISMISS      THE   SUIT    FILED    BY
RESPOND ENTS IN O.S .NO.277/2001 AND ETC.


      THIS APPEAL COM ING ON F OR ORDERS THIS DAY , T HE
COURT , D ELIVERED THE F OLLOWING:
                                    4




                               JUDGMENT

Challenging judgment and decree dated 11.12.2019

passed by I Addl. Senior Civil Judge, Gokak in R.A.No.23/2016

thereby confirming judgment and decree dated 10.02.2016

passed by Prl. Civil Judge and JMFC., Gokak in O.S.

No.277/2001, this second appeal is filed by defendant no.1.

2. Brief facts as stated are that respondents - plaintiffs

before trial court sought for declaration, possession and

injunction in respect of suit schedule property which was

granted under impugned judgment and decree. One of main

grounds urged in this appeal is that plaintiffs had initially

sought relief of possession and injunction, thereafter,

amended plaint, seeking additional prayer of declaration.

However, trial Court without granting opportunity to defendant

to file additional written statement, decreed the suit.

3. The above appeal was admitted on 29.01.2020 to

consider following substantial question of law:

"Whether trial Court is justified in not granting opportunity to defendant to file additional written statement when plaintiff has amended plaint?"

4. Sri. C.S.Shettar, learned counsel for appellant

submitted that initially suit filed by plaintiff was only for relief

of possession. After conclusion of trial, when matter was

posted for arguments, plaintiff filed IA No.24 under Order 6

Rule 17 of Code of Civil Procedure, 1908, seeking for

amending plaint for adding relief of declaration. Said

application was allowed on 05.12.2015. Thereafter, instead of

posting matter for filing of additional written statement, trial

court posted matter to 08.12.2015 for filing of amended

plaint. On the said date, matter was adjourned to 09.12.2015

and again to 10.12.2015. Plaintiff amended the plaint on

10.12.2015, thereafter, matter was posted for arguments on

17.12.2015. On 10.02.2016, trial court decreed the suit

without providing opportunity to file additional written

statement to defendant - appellant after amendment of plaint.

Learned counsel further submitted that even first appellate

court failed to re-appreciate facts and evidence on record and

without framing proper points for consideration as required

under Order XLI Rule 31, dismissed appeal. Therefore, seeks

for allowing appeal.

5. At the outset, Sri Shriharsh Neelopanth, learned

counsel for respondent submitted that appellant had not raised

any objection regarding denial of opportunity either before

trial court or first appellate court. As defendant - appellant

virtually acquiesced in impugned judgment and decree,

therefore, appellant would be estopped from urging said

contention for first time in second appeal. In view of above, it

was submitted that no substantial question of law arose for

consideration and sought for dismissal of appeal.

6. Admittedly, plaintiffs got plaint amended during

pendency of suit after filing of written statement to un-

amended plaint and parties had adduced evidence. At such

stage, where if plaint were to be amended, defendant would

be afforded an opportunity to file additional written statement.

In fact, trial court is bound to provide such opportunity,

failure to do so leading to violation of principles of natural

justice which would go to root of matter. Though, it is

contended that a specific ground of violation of principles of

natural justice was not urged before first appellate court, it is

seen that such a ground was in fact canvassed and urged in

written arguments. In any case, same being a question of law

can also be raised even in second appeal.

7. On perusal of order sheet of trial Court, it is seen

that IA No.24 for amendment of plaint was allowed on

05.12.2015 and adjourned to file amended plaint. On

10.12.2015 after plaintiff filed amended plaint, next stage was

for arguments on main matter. Thereafter, till disposal of suit

on 10.02.2016, no opportunity was provided to defendant to

file additional written statement leading to violation of

principles of natural justice. Therefore, in the considered

opinion of this Court, impugned judgments and decree passed

by trial court as well as first appellate court are liable to be set

aside and matter requires remand to trial court for rectification

of error of procedure. Substantial question of law is answered

in negative and in favour of appellant.

8. Learned counsel for respondent submits that

appropriate directions be issued to trial court for disposal of

suit in a time bound manner, as suit is of year 2001. Said

submission appears reasonable. Hence, I pass following :

ORDER

Appeal is allowed.

Judgment and decree dated 11.12.2019

passed in R.A.No.23/2016 by I Additional Senior

Civil Judge Court at Gokak and judgment and

decree passed by Prl. Civil Judge and JMFC

Court, Gokak in O.S.No.277/2001 dated

10.02.2016 are hereby set aside.

Matter is remanded to trial court for fresh

disposal.

Trial Court shall proceed with suit from

stage of filing of additional written statement

insofar as amendment of plaint.

The evidence already led by parties would

holds good. Parties are at liberty to lead further

evidence if any, insofar as additional relief

sought by way of amendment.

Both parties are directed not to take

unnecessary adjournments and co-operate for

early disposal of suit. Trial Court is requested to

proceed with matter on day to day basis from

stage of recording of evidence and dispose of

matter as expeditiously as possible but in

accordance with law not later than one year from

date of appearance of parties.

Parties are directed to appear before trial

Court without expecting any fresh notice on

15.02.2022, as all parties are represented before

this Court.

Sd/-

JUDGE

H MB